Graham Coppes entered the spring hopeful. Despite a slow start to winter, most Western Montana river basins were reporting a near-average snowpack by April. But when warm May temperatures brought an underwhelming runoff, Coppes knew it would be a long, difficult summer for aquatic ecosystems and the $1.3 billion recreational economy they support.
Slow-motion alarm set in as Coppes, a Missoula-based attorney, watched one blue-ribbon river after another dip to record lows. Montana Fish, Wildlife and Parks, which forecasted the difficult summer ahead in June, responded by partially or fully closing more than a dozen rivers to fishing after they reached low streamflow thresholds and high temperatures that can endanger trout.
In a lawsuit filed on Aug. 8, Coppes argued that FWP should have done more for iconic rivers such as the Blackfoot, Clark Fork and Big Hole to benefit the fish that live in them and the broader Montana public. Since then, rivers have remained at record lows, and Coppes told Montana Free Press in a recent conversation that the future is going to be “pretty bleak” for Montana’s aquatic ecosystems unless the state starts using and enforcing its water rights and reservations to bolster instream flows more assertively and proactively.
Guy Alsentzer with Upper Missouri Waterkeeper, one of the lawsuit’s plaintiffs, says FWP is choosing politics over science, even as rivers are “diminished and degraded” by extreme drought and unchecked pollution.
Coppes first contemplated the lawsuit 15 years ago, when he was a University of Montana student learning a new policy language — water law — to protect the wild headwaters he’d come to love during the decade he’d spent working as a fly-fishing and raft guide in northwest Montana.
In the lawsuit, Coppes is asking a state district court judge in Helena to evaluate whether Montana’s government is fulfilling its constitutional obligation to prevent the “unreasonable depletion and degradation of natural resources” in its administration of water, which the state Constitution says is “the property of the state for the use of the people.”
Although it may be years before the lawsuit is decided, Coppes told MTFP that this summer presented the right moment to bring a ‘critical, missing piece’ to the conversation: an evaluation of how Montana’s public trust water resources interact with water rights, which are treated as a property interest that can be bought, sold, leased or — in the case of an “abandonment” — forfeited.
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Upper Missouri Waterkeeper and its co-plaintiffs, Alliance for the Wild Rockies and Save Bull Trout, are critical of a July 2021 letter Gov. Greg Gianforte sent to FWP directing the agency to “forego a call” on the Smith and Shields rivers because it would “provide questionable, if any, measurable benefit.” The environmental groups argue that the “first in time, first in right” framework for allocating water Gianforte alluded to in his letter too often leaves fisheries in a lurch. They contend that FWP is often unwilling or slow to ask more junior water-right holders to stop using water, even in the face of unprecedented conditions.
But to other stakeholders, the state-held water rights in question are too junior — and too modest — to turn the tide of diminishing streamflows. Agricultural groups argue that the current system of water management, which benefits those with the oldest water rights, is too foundational and entrenched to change. Still others say FWP is right to defer to locally developed watershed groups that have taken root in basins where demand is snowballing for an increasingly scarce resource. The Big Hole Watershed Committee and Blackfoot Challenge, for example, say carrots have a stronger track record than sticks when it comes to improving watershed resilience.
The organizations’ executive directors wrote in an early September letter to the editor that cooperative, voluntary conservation measures are working in their basins and highlighted six-figure financial sacrifices irrigators have made to bolster streamflows. Requiring the state to use a heavy-handed approach to managing its instream flow water rights is “a short track to picking a handful of winners and leaving many more losers, including the fisheries and aquatic health of our streams,” they concluded.
Bill Schenk, who started working on instream flows for FWP in 2003, echoed this sentiment in a late September conversation with the Montana Free Oress. He said stakeholder-led efforts have proven to be a “more durable, long-lasting solution” than sending out call letters alone. He also described the 84-page Water Right Call Protocol the agency issued in 2022 as an “almost verbatim” record of what FWP has been doing for years.
“There’s nothing to be gained by vilifying landowners and water users,” Schenk added. “The ecological system and the community economic system need to coexist.”
Coppes acknowledged that he’s “kicked a little bit of a hornet’s nest” with the lawsuit, but maintains that the status quo isn’t working.
“We can’t sit back and throw our hands up and say, ‘This is all we can do. We just have to accept these shitty conditions and fish dying.’”
Coppes said the state can support locally led drought efforts while upholding its own water rights. If ever there were a time for FWP to use every tool at its disposal — and then some — this would be it, he contends.
“In spite of the State’s ongoing and well-documented drought, as of the date of this Complaint filing, FWP still has not made call on all of its instream flow rights,” the 152-page lawsuit reads. “If the agency will not make call during the largest drought, and lowest river flows, on record, when would it ever do so?” (FWP disputed that characterization of its management approach in its answer to the environmental groups’ lawsuit.)
Coppes maintains that refocusing fraught conversations about water management on the state’s public trust obligation could force policymakers to confront a grim constellation of climate-change drivers pointing toward even lower, warmer, more ecologically compromised waterways in the coming decades.
“To us, the best possible outcome is the establishment of an affirmative duty — the application of that ‘clean and healthful environment’ language [in the state Constitution] that we have seen the court communicate for climate change in Held,” Coppes said, referencing the landmark climate case the Montana Supreme Court decided last year in favor of Rikki Held and her 15 young co-plaintiffs. “If we can establish that duty and that obligation, then we could springboard that to more progressive action in the future.”
‘A Perfect Recipe of Doom'
Michelle Bryan, who teaches courses on water law and property law at the University of Montana, told MTFP that the state started establishing instream flow rights more than 50 years ago to avoid a legal showdown between the public trust aspect of water ownership and other uses such as irrigation, which accounts for 67% of the water consumed in Montana.
“The way Montana dealt with the problem was to create instream flow rights so that the public trust and traditional consumptive uses would not go head-to-head,” she said, adding that Montana’s constitutional environmental protections add another layer of complexity to the litigation. “I don’t know of a case squarely on point with this.”
Montana Fish, Wildlife and Parks is asserting the water rights it holds in 10 Montana rivers to keep more water in cold-water fisheries facing low flows wrought by this winter’s meager snowpack.by Amanda Eggert08.21.2024
Alsentzer, with Upper Missouri Waterkeeper, argues there is no legal basis to treat instream flow rights as a second-tier water use.
“There is no distinction between the appropriative right to keep water instream for aquatic life and flows, versus somebody taking it out to use it for a number of purposes, whether it’s being sent to an irrigation ditch, a sprinkler or a mine,” Alsentzer said. “All we’re asking for in this lawsuit is that FWP do exactly what [these water rights and reservations] are literally on the books for: to provide for in-stream flows based on science-based triggers.”
Alsentzer also argues that Montana’s wild trout are facing a “perfect recipe of doom,” including fish-killing spikes in water temperature, pernicious algal blooms that deoxygenate aquatic ecosystems, and declining populations of macroinvertebrates, which are an essential food source for trout. Diminished streamflows exacerbate all three.
“There’s no more luxury of waiting for thoughtful solutions that are just magically going to [appear],” Alsentzer said. “The one entity, more than any other, that needs to be leading the charge is our government.”
‘What are we doing here?'
It’s not just fish and anglers feeling the pinch with diminished water supplies. Karli Johnson, Montana Farm Bureau Federation’s state governmental affairs coordinator, said drought has hit agricultural producers along the Rocky Mountain Front particularly hard this year.
Several reservoirs that flow into irrigation projects never filled this spring. Johnson said it will take multiple years of above-average precipitation to climb out of a deficit that dates back to at least 2021, the year Gianforte directed FWP not to use its instream flow rights in some basins.
Johnson, who “moonlights as a rancher in Choteau,” said she’s feeling the strain personally.
“Where we normally get thousands of bales [of hay], this year we got 43,” she said.“We definitely had a challenging year.”
Johnson cautions against focusing on pipes, pumps and ditches without also considering how irrigation systems benefit people, groundwater and the wild animals such as white-tailed deer, moose, frogs and turtles that frequent irrigated valley bottoms.
“You can’t look at it in a vacuum,” she said. “For example, flood irrigation affects not just the water in the stream — it also affects the recharge of the aquifers. It mimics some of the natural water patterns that we maybe would have seen when there were a lot more beavers on the stream. And it also has the added benefit of allowing us to grow food and fiber.”
Mike Bias, a Twin Bridges-based fly-fishing outfitter, said he has mixed feelings about the lawsuit but acknowledged that more needs to be done to protect the long-term viability of the state’s chronically dewatered rivers.
Bias said he supports the work of the Big Hole Watershed Committee, which he described as “doing more on the Big Hole to help water than anyone else — period.” Bias also argues that FWP’s instream flow rights are generally too junior to make much of a difference in the grand scheme of things, even in “wicked low” years like this one. (In late August, the Big Hole dropped so low that FWP closed the entire river to fishing, an intervention Bias described as “unprecedented.”)
But Bias, the executive director of the Fishing Outfitters Association of Montana, said Montana is long overdue for a reckoning about how, where and when water is used. He said he supports the litigation to the extent that it’s advancing the “What are we doing here?” conversation.
“Is irrigating this many acres of this or that — or, for example, growing potatoes in the Ruby Valley — is that more important than keeping water in the river?” Bias asked. “I think that conversation needs to happen.”
For Coppes, waiting won’t make the inevitable reckoning any easier. He described the lawsuit as the first step in a larger discussion.
“We need the precedent to say, ‘FWP and the state of Montana has a constitutional obligation to do everything in its power to protect these river systems.’ Once we have that, we can talk about what those tools might be,” he said. “There’s nothing, to me, that’s more antithetical to a ‘clean and healthy environment’ than a dead, dry river. And right now there are dead, dry rivers across the whole state.”
This story was originally published by Montana Free Press at montanafreepress.org.
